Court asked to tackle Twist case

WASHINGTON -- Hollywood has a message for the Supreme Court: Comic books are good, constitutionally protected fun.

A who's who from the entertainment world asked the court this week to review a case involving a comic book creator accused of defaming former Blues player Tony Twist by naming a mafia character after him.

The real Twist, a former NHL player known more for his fighting than his skating, sued "Spawn" creator Todd McFarlane in 1997. A St. Louis Circuit Court jury awarded Twist more than $24.5 million in 2000, but the judge overruled the jury.

The Missouri Court of Appeals' Eastern District ruled in McFarlane's favor two years ago, citing First Amendment protections, but the Missouri Supreme Court in July 2003 ordered a new trial. The court called McFarlane's use of Twist's name "predominantly a ploy to sell comic books and related products rather than an artistic or literary expression."

U.S. Supreme Court justices soon will decide whether to use the case to clarify whether artists have protection when they poke fun at public figures.

Encouraging the court to intervene are: Michael Crichton, creator of the television series "ER;" Larry David, co-creator of "Seinfeld;" novelists Scott Turow and Jeremiah Healy; actor-comedian Harry Shearer from "The Simpsons;" Elmore Leonard, author of "Get Shorty;" Paul Weitz, co-director of the film "American Pie;" and Ron Shelton, writer and director of movies "Bull Durham" and "White Men Can't Jump."

So far, the court's only major free-speech case this term involves a challenge of the new federal campaign finance law. Justices could rule in that case as early as next week.

Twist claims the character in the "Spawn" comic series, a violent mob enforcer, hurt his image and cost him endorsements. The creator, Todd McFarlane, says he's an avid hockey fan and has acknowledged he named his character after the player.

But McFarlane said the resemblance stopped there, arguing in documents filed during his appeal in Missouri that "Spawn" characters "are purely fictional fantasies, and no reasonable person could confuse the plaintiff with the fictional fantasies and characters portrayed therein."

Lawyers Erik Jaffe and Eugene Volokh, representing the artists and The Authors Guild Inc., told the Supreme Court in a filing that public figures have long provided artistic value for creators. What about the opera-singing bird on "Sesame Street" named Placido Flamingo, they asked, among many other examples.

"The names and personalities of famous people are a proper part of the author's palette," the lawyers wrote in the filing.

The case is McFarlane v. Twist, 03-615.

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